ORS 813.140
Chemical test with consent

  • unconscious person

Nothing in ORS 813.100 (Implied consent to breath or blood test), 813.131 (Implied consent to urine test) or 813.132 (Consequences of refusing to take urine test) is intended to preclude the administration of a chemical test described in this section. A police officer may obtain a chemical test of the breath or blood to determine the amount of alcohol in any person’s blood or a test of the person’s blood or urine, or both, to determine the presence of cannabis, psilocybin, a controlled substance or an inhalant in the person as provided in the following:

(1)

If, when requested by a police officer, the person expressly consents to such a test.

(2)

Notwithstanding subsection (1) of this section, from a person without the person’s consent if:

(a)

The police officer has probable cause to believe that the person was driving while under the influence of intoxicants and that evidence of the offense will be found in the person’s blood or urine; and

(b)

The person is unconscious or otherwise in a condition rendering the person incapable of expressly consenting to the test or tests requested. [1983 c.338 §593; 1985 c.16 §299; 1999 c.619 §11; 2013 c.642 §2; 2017 c.21 §83; 2019 c.475 §7; 2021 c.253 §9]

Source: Section 813.140 — Chemical test with consent; unconscious person, https://www.­oregonlegislature.­gov/bills_laws/ors/ors813.­html.

Notes of Decisions

Under former similar statute

As an alternative to a breath test, an arresting officer may request the arrested person to submit to a test of his blood, urine or saliva. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

Introduction of a blood sample taken from an unconscious person when the police have probable cause to believe that person was driving under the influence of alcoholic liquor is not made inadmissible by anything in the Implied Consent Law. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

A blood test cannot be compelled over the driver’s refusal. State v. Annen, 12 Or App 203, 504 P2d 1400 (1973), Sup Ct review denied

This section did not preclude introduction into evidence of blood-alcohol test results from a test made by an investigating officer of blood taken by the hospital for treatment purposes, at a time when defendant’s condition was too serious for the investigating officer to interview him. State v. Enoch, 21 Or App 652, 536 P2d 460 (1975)

Though state violated this section in taking defendant’s blood sample without obtaining consent of defendant or showing defendant incapable of consenting, suppression of evidence for such violation was not required where police had probable cause to seize blood and exigent circumstances excused failure to obtain search warrant. State v. Reddish, 78 Or App 219, 715 P2d 495 (1986)

Where blood test was not requested by officer nor test performed at request of officer, this section was inapplicable. State v. Luttrell, 80 Or App 771, 723 P2d 1071 (1986)

In general

Where defendant has been given Miranda warnings and signed consent form to “a search of my person” which advises him that search “may result in criminal charges against me” defendant has expressly consented to blood tests. State v. Davidson, 88 Or App 615, 746 P2d 753 (1987)

Because prosecution for criminally negligent homicide was not prosecution for driving under influence of intoxicants, this section did not require exclusion of blood tests even though they were not obtained according to procedures set out in this section. State v. Milligan, 304 Or 659, 748 P2d 130 (1987)

Absence of reading from breath test on Intoxilyzer checklist is not basis to suppress because its completion or lack of it had no bearing on performance of test or its accuracy as evidence. State v. Hemkin, 102 Or App 79, 792 P2d 483 (1990)

“Expressly consents” means actually consents, therefore consent may be manifested by means other than verbalization. State v. Doran, 133 Or App 698, 893 P2d 569 (1995)

813.010
Driving under the influence of intoxicants
813.011
Felony driving under the influence of intoxicants
813.012
Crime classification for purposes of rules of Oregon Criminal Justice Commission
813.017
Arraignment
813.020
Fee to be paid on conviction
813.021
Requirements for screening interview and treatment program
813.022
Proof of treatment
813.023
Alternative payment methods for screening interview or treatment program
813.025
Designation of agency to perform screening interview and treatment program
813.030
Amount of fee
813.040
Standards for determination of problem condition involving alcohol, inhalants or controlled substances
813.050
Out-of-service orders for operators of commercial motor vehicles
813.055
Civil penalty for violation of out-of-service order or notice
813.095
Offense of refusal to take a test for intoxicants
813.100
Implied consent to breath or blood test
813.110
Temporary permit upon confiscation of license
813.120
Police report to department
813.130
Rights of and consequences for person asked to take test
813.131
Implied consent to urine test
813.132
Consequences of refusing to take urine test
813.135
Implied consent to field sobriety tests
813.136
Consequence of refusal or failure to submit to field sobriety tests
813.140
Chemical test with consent
813.150
Chemical test at request of arrested person
813.160
Methods of conducting chemical analyses
813.170
Plea agreement prohibited
813.200
Notice of availability of diversion
813.210
Petition
813.215
Eligibility for diversion
813.220
Matters to be considered by court in determining to allow diversion agreement
813.222
Right of victim to be present at hearing
813.225
Petition for extension of diversion period
813.230
Diversion agreement
813.233
Exemption from completing treatment program in this state
813.235
Attendance at victim impact treatment session as condition of diversion
813.240
Amount and distribution of filing fee
813.245
Booking
813.250
Motion to dismiss charge on completion of diversion
813.252
Motion to dismiss charge when minimal fine amount remains
813.255
Termination of diversion
813.260
Designation of agencies to perform screening interviews
813.270
Intoxicated Driver Program Fund
813.300
Use of blood alcohol percentage as evidence
813.310
Refusal to take chemical test admissible as evidence
813.320
Effect of implied consent law on evidence
813.322
Department of State Police rules regarding breath tests as evidence
813.324
Use of testimony from implied consent hearing as evidence in prosecution
813.326
Felony driving while under the influence of intoxicants
813.328
Notice of intent to challenge validity of prior convictions
813.400
Suspension or revocation upon conviction
813.410
Suspension upon receipt of police report on implied consent test
813.412
Role of police officer in implied consent hearing
813.420
Duration of suspension for refusal or failure of test
813.430
Grounds for increase in duration of suspension
813.440
Grounds for hearing on validity of suspension
813.450
Appeal from suspension for refusal or failure of breath test
813.460
Department procedures upon verification of suspension of driving privileges of wrong person
813.470
Department notation on record of person acquitted after suspension
813.520
Limitations on authority to issue hardship permit or reinstate driving privileges
813.599
Definitions
813.600
Ignition interlock program
813.602
Circumstances under which ignition interlock device required
813.603
Waiver of costs of ignition interlock device
813.604
Notice of court order
813.606
Exception for employee otherwise required to have device
813.608
Knowingly furnishing motor vehicle without ignition interlock device
813.610
Soliciting another to blow into ignition interlock device
813.612
Unlawfully blowing into ignition interlock device
813.614
Tampering with ignition interlock device
813.616
Use of certain moneys to pay for ignition interlock program
813.620
Suspension of driving privileges for failing to provide proof of device installation or for tampering with device
813.630
Notice of ignition interlock device installation and negative reports
813.635
Consequence for negative reports generated from ignition interlock device
813.640
Additional treatment following negative reports
813.645
Motion to vacate requirement to install and use ignition interlock device
813.660
Service center and manufacturer’s representative certification
813.665
Criminal background check for technicians
813.670
Complaint process
813.680
Ignition Interlock Device Management Fund
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